Van Vorce v. Thomas

BISHOP, J.,

pro tem.

Judgment was entered against a deputy marshal of the Municipal Court of Los Angeles County for the damages occasioned by his assault upon plaintiff during the service of process in claim and delivery, but ■as to the marshal himself a judgment of nonsuit was entered. Plaintiff appeals from the judgment of nonsuit, relying not upon any-active or advisory participation of the marshal in the affair, for there was none, but solely upon the theory that the marshal is civilly liable for the damages inflicted by the torts of his deputies which occur in the discharge of their official duties. We hold that in the case of the defendant marshal no such general liability exists.

It does not exist, certainly, by virtue of any express provision of the statute creating the office of marshal of the municipal court and prescribing his duties. (Stats. 1925, p. 648; Deering’s Gen. Laws 1931, Act 5238.) Plaintiff’s theory is that the liability follows the provision in section 25a of the statute just referred to, by which the significant Political Code sections prescribing the sheriff’s duties are made to “apply to marshals and govern their powers, duties and liabilities”. Nowhere in these sections, however, is to be found a provision that places any liability on the sheriff for the torts of his deputies. Our problem, then, is to examine the doctrine of the sheriff’s liability which we have inherited from the common law, to see if it fits the marshal’s shoulders.

The most recent case recognizing and applying the doctrine,

Abbott

v.

Cooper,

(1933) 218 Cal. 425 [23 Pac. (2d) 1027], centered its attention on another problem than the reasons for and the nature of the liability. In

Foley

v.

Martin,

(1904) 142 Cal. 256 [71 Pac. 165, 75 Pac. 842, 100 Am. St. Rep. 123], however, the court supports its conclusion that the sheriff was civilly responsible for the torts of his deputy by saying: “The act of the deputy was the act of the sheriff. The deputy is not the agent or servant of the sheriff, but is his representative, and the sheriff is liable for his acts the same as if they had been done by himself. ‘The act constituting the cause of action is that of the defendant, and, though done through a deputy, is considered